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I. Summary

Policeman: “We kill them.”
RNA Soldier: “No, we take them to jail.”
Policeman: “Yes, we take them to jail and then we kill their asses.”
—Conversation between Human Rights Watch researchers, a Royal Nepalese Army soldier, and a police officer about the treatment of detained Maoists, September 2004.

In the Nepali government’s war with Maoist insurgents, the number of enforced disappearances—cases in which people are taken into custody and authorities then deny all responsibility or knowledge of their fate or whereabouts—has reached crisis proportions. Over the last two years, the Nepali security forces have made Nepal one of the world’s prime locations for enforced disappearances.

According to the United Nations Working Group on Enforced and Involuntary Disappearances (WGEID), in 2003 and 2004 Nepal recorded the highest number of new cases of disappearances in the world.¹ Nepal’s National Human Rights Commission (NHRC) has received reports of 1,234 cases of “disappearance” perpetrated by security forces since May 2000.

Government security forces commit the overwhelming majority of the “disappearances,” and instead of taking action to prevent such severe abuses, civilian authorities have focused on issuing denials and covering up the abuses. No senior officer has ever been held accountable for “disappearances” in Nepal. Even if the government has not directly asked its security forces to commit “disappearances” as part of its campaign against the Maoists, its failure to take reasonable steps to end the practice or to hold perpetrators accountable makes civilian authorities deeply complicit. In the face of such government inaction, disappearances can fairly be characterized as government policy.

This report, based on Human Rights Watch research in Nepal in September and October 2004, documents the pattern of “disappearances” by Nepali security forces and analyzes the factors responsible for the crisis. The Appendix to the report contains summaries of 203 cases of “disappearance” documented by Human Rights Watch.

Human Rights Watch’s research indicates that the actual number of “disappearances” in Nepal may be significantly underreported, since a number of persons we spoke with had not reported the “disappearances” of their relatives to any governmental institution or non-governmental group. In a number of cases, Human Rights Watch was the first organization the witnesses had talked to about the “disappearances.” In particular, “disappearances” that occurred during the earliest stages of the conflict and during the state of emergency (November 2001- August 2002) appear to be underreported, because the human rights community had limited capacity and experience in dealing with such cases, and because many families were unable to report cases due to security concerns and logistical hurdles, including those posed by Nepal’s challenging terrain.

While the cases documented by Human Rights Watch represent only a fraction of the total number of “disappearances” occurring in Nepal, they clearly demonstrate the responsibility of the security forces for a geographically broad pattern of “disappearances.” The prevalence of the problem makes it clear that this is not just the result of the actions of some “bad apples” or rogue elements in the security forces. The use of army camps and barracks and police stations as places to hold “disappeared” persons demonstrates that these crimes cannot be happening without the knowledge of at least some senior officers in the security forces and likely some members of Nepal’s civilian leadership as well. “Disappearances” are systemic and an integral part of Nepal’s counterinsurgency campaign, not the aberrant actions of rogue elements.

The failure of the Nepali authorities to prevent “disappearances,” to bring perpetrators to justice, and to provide victims with proper redress violates the country’s obligations under international law, including the International Covenant on Civil and Political Rights, the Convention against Torture, and the Geneva Conventions, to all of which Nepal is a party. Human Rights Watch does not challenge the right of Nepali security forces to search for, arrest, or interrogate individuals, including Maoist insurgents, suspected of involvement in illegal activities. However, any such operations must conform to Nepali and international law. Specifically, neither suspected nor proved involvement with the Maoists can justify an enforced disappearance or the summary execution of a detainee. International law unequivocally grants captured combatants the right not to be “disappeared” or summarily executed.

The armed conflict in Nepal dates back to 1996, when the Communist Party of Nepal (Maoist) (CPN-M) launched an armed insurgency after announcing its “people’s war” against the monarchy and the existing system of governance. The regular police forces, initially charged with suppressing the insurgency, proved unable to control the situation, and in 2001 the government declared a nationwide state of emergency and deployed the Royal Nepalese Army (RNA) to combat the Maoists. The state of emergency was repealed in August 2002, but the army remains at the center of the counterinsurgency operation.

Even with the RNA deployed, however, government forces have not managed to end the insurgency. Current estimates suggest that the Maoists control over forty percent of Nepal’s countryside. Several attempts at peace talks have failed. Since the collapse of the most recent ceasefire in August 2003, the fighting has resumed with increased intensity. With both sides blatantly violating humanitarian law and committing massive abuses, previously documented by Human Rights Watch and others, the conflict has caused a major human rights crisis in Nepal, exacerbated by the country’s political instability and dire economic circumstances.

The Maoists have a dismal human rights record. Maoist forces have abducted, tortured, and killed civilians suspected of being “informers” or “enemies of the revolution.” They have extorted “donations” from villagers, recruited children as soldiers and in other conflict-related capacities, and abducted students for political indoctrination.

If abuses by Maoist forces do not loom large in a report on “disappearances,” it is because Maoists often openly execute those they abduct, accusing victims of being spies, class enemies, or guilty of defying Maoist rule. In order to achieve the maximum deterrent effect on the population, the Maoists often execute their victims in public, forcing the victim’s relatives and other villagers to observe the killing. The executions are often preceded by horrendous torture and may involve excruciating methods of killing, such as burning a victim alive or breaking the victim’s bones until the he or she finally dies.

In other cases, the Maoists hold those they abduct for ransom or in order to compel a victim’s relative to resign from the security forces. Maoists also occasionally force entire villages or schools to attend political indoctrination meetings. They usually release the villagers or students at the end of such meetings, although some may be pressured into joining the insurgents. In some cases, however, the victims abducted by the Maoists are never seen again.

During its mission to Nepal, Human Rights Watch documented eleven cases of abductions by the Maoists: two of the victims were later released, two are believed to have been killed, one has reportedly joined CPN-M, and others remain missing. Human Rights Watch calls on the CPN-M to clarify the whereabouts of the missing individuals and end its practice of executing those it abducts.

Nepali government forces also have a very poor human rights record. In addition to the appalling record of enforced disappearances documented here, government forces have been responsible for numerous summary and extrajudicial executions, torture, and arbitrary arrests, all perpetrated with almost complete impunity.

“Disappearances” by government forces have taken place since the late 1990s, but the number of victims skyrocketed after the resumption of hostilities in 2003. In almost all cases documented by Human Rights Watch, witness testimony confirmed that individuals who “disappeared” were last seen in the custody of government security forces, who had detained them during large-scale operations or targeted raids, arrested them at checkpoints, or had simply taken them away from places of work or study.

“Disappearances” take a particularly heavy emotional toll on family members and friends, who do not know whether the “disappeared” person is dead or alive. After being arrested by the security forces, most “disappeared” persons are never again seen or heard from, and the families are left without a clue as to their fate. Relatives continue to search for the “disappeared,” inquiring at nearby army barracks, prisons, police offices, and other places of detention, but the security officials simply claim to have no knowledge of the arrest, or deny having the detainees in their custody. The families’ appeals to the Chief District Officers (CDOs), courts, and to other governmental and non-governmental agencies prove futile in these cases. Civil authorities rarely intercede on behalf of the “disappeared,” alleging they are powerless over the army.

In a number of cases, however, family members were able to visit relatives in detention prior to their “disappearance,” or received reliable information of their whereabouts through other means, such as reports from released detainees who had spent time in custody with the “disappeared” person. Their testimonies suggest that the majority of the “disappeared” are held incommunicado in unofficial places of detention, primarily army barracks and camps across Nepal.

Human Rights Watch identified dozens of army barracks and camps, as well as police stations and other facilities, which have been implicated in “disappearances.” Among the places of detention where the “disappeared” persons were last seen alive are Bhairabnath Gulm (Maharajgunj) army barracks (Kathmandu), Chhauni (Jagadal) army barracks (Kathmandu), Balazu police station and Balazu army camp (Kathmandu), Shorakutte police station (Kathmandu), Farping army camp (Kathmandu), Fulbari army barracks (Kaski), Bijayapur army barracks (Kaski), Pokhara police post (Kaski), Bharatpur police post (Chitwan), Rajdal army barracks (Lalitpur), Suryabinayak army barracks in Bhaktapur (Kavre), Mahedra Gand army barracks (Gorkha), Choprak police station (Gorkha), Gorkha district police headquarters (Gorkha), Nawalparasi army barracks (Nawalparasi), Bhansar police post (Tanahu), Tulsipur army barracks (Dang), Lamahi Armed Police Force barracks (Dang), Rajpur area police post (Dang), Tulsipur prison (Dang), Ghorahi regional police station (Dang), Ghorahi army barracks (Dang), Chisapani army barracks (Bardia), Thakurdwara army barracks (Bardia), Rambhapur army barracks/army post (Bardia), Guleria district police office and Guleria prison (Bardia), Kohalpur army barracks and Kohalpur police post (Banke), and Rajha Airport Army Barracks (Banke).

Enforced disappearances also increase the risk of other abuses, such as extrajudicial executions and torture. In twenty-eight cases documented in this report, families of the “disappeared” believe that their relatives were killed after being taken into custody by the security forces. Reports of the killings have come from eyewitnesses to executions, media stories, human rights and humanitarian organizations, or unofficial contacts in the security forces. However, in only one of the cases was the death officially confirmed and the body returned to the family.

In many other cases documented by Human Rights Watch in Nepal, particularly those where the “disappeared” persons have been missing for years, it is likely that they were the victims of extrajudicial executions while in the custody of the security forces.

Flawed Nepali legislation contributes to the prevalence of “disappearances.” The October 2004 revision of the much-criticized Terrorist and Disruptive Activities Ordinance (TADO), originally adopted during the state of emergency in 2001, allows security forces to hold individuals in preventive detention for up to one year without charge or trial and reinstates their almost absolute immunity from prosecution, thus creating fertile ground for abuses.

The broad impunity enjoyed by Nepali security forces for human rights violations, documented previously in reports by Human Rights Watch and others, is one of the primary factors leading to widespread “disappearances.” In addition, the army routinely either ignores or refuses to accept habeas corpus orders issued by the courts. It brazenly lies to judicial authorities regarding the whereabouts of individual detainees, thereby undermining the judiciary’s meager efforts to address the problem. For its part, the Supreme Court of Nepal has been remiss in its duty to use its constitutional powers to ensure compliance with its orders and promote accountability.

Despite overwhelming evidence of human rights violations by security personnel, neither the government nor the RNA command has taken sufficient action to prevent and punish the abuses. Human Rights Watch urges senior officers not to take these responsibilities lightly: the failure to take appropriate action against “disappearances,” particularly in light of the extensive documentation provided in this and other reports, may make officers personally criminally liable for such abuses under the doctrine of command responsibility.

The RNA and the Home Ministry have also obstructed the efforts of the NHRC to address the problem of “disappearances.” Specifically, army officials have repeatedly denied NHRC representatives access to barracks and other places of detention, thus preventing the Commission from establishing the whereabouts of the “disappeared” persons in cases it was investigating.

Until the past year, the international community, particularly the United States and India, Nepal’s major suppliers of military assistance, failed to respond adequately to the crisis. After September 11, 2001, the United States largely viewed the conflict in the context of its global “war on terror.” It offered unconditional support to the Nepali government and largely disregarded its appalling human rights record. However, in late 2004 the U.S. Congress passed legislation placing human rights conditions on further U.S. military assistance. President Bush signed the bill into law in December 2004. The law requires the Nepali government to:

• take effective steps to end torture by security forces and to prosecute members of such forces who are responsible for gross violations of human rights;

• determine the number of and make substantial progress in complying with habeas corpus orders issued by the Supreme Court of Nepal, including all outstanding orders;

• cooperate with the National Human Rights Commission of Nepal to identify and resolve all security related cases involving individuals in government custody; and

• grant the National Human Rights Commission of Nepal unimpeded access to all places of detention.

The U.S. Departments of State and Defense now have the duty to closely monitor compliance with these conditions and to report when they are not observed. There are signs that the U.S. is beginning to monitor the behavior of the armed forces more carefully, but it is unclear how sustained this has been or will be.

Immediately after the passage of the U.S. legislation, the Nepali army chief of staff made an unprecedented visit to the Supreme Court and the National Human Rights Commission. He promised to comply with the Court’s habeas corpus orders and to cooperate with the human rights monitoring efforts of the NHRC. It is unclear whether this was a sincere commitment or a mere public relations gesture.

In the past year, the United Nations and European Union have also significantly intensified their pressure on the Nepali government, urging its compliance with international obligations and seeking concrete action to curb human rights abuses. In January 2005, the United Nations High Commissioner for Human Rights, Louise Arbour, said in a speech in Kathmandu that the U.N. believed that unimpeded access by the NHRC to all places of detention without prior notification was of central importance to resolving the “disappearance” crisis.

Under this mounting international pressure, the Nepali government has publicly asserted its commitment to uphold human rights and to abide by the laws of war in its counterinsurgency operations. It has also taken several steps toward addressing the problem of “disappearances,” such as establishing a governmental committee to investigate the “disappearances” and opening a new detention center for suspects previously held in army barracks.

These responses clearly demonstrate that the international community should continue using its influence to put an end to human rights abuses and promote accountability in Nepal. But such pressure needs to be focused, sustained, and unified. Unfortunately, India has undermined these messages by continuing to offer unconditional support for the government.² This has included recent announcements of increased military aid and the holding of high level and high profile governmental visits. India has signally failed to make human rights a formal part of its diplomacy with Nepal.

The most important test of Nepal’s commitment to human rights will be its willingness to address the root problem of accountability. This will require the prosecution and dismissal of senior military and police officials responsible for “disappearances” and other serious violations. Progress will depend on the political will of key actors in Nepal, including the RNA command, the interim government, and the king. Neither the government nor the Maoists can expect to enjoy public support or international legitimacy so long as they engage in egregious human rights abuses.

Human Rights Watch calls on the Nepali government to take immediate measures to stop enforced disappearances and address the factors that make them possible. The authorities should thoroughly investigate all cases of “disappearance,” including those documented in this report. They must urgently take steps to hold perpetrators accountable in a credible and systematic manner. Habeas corpus orders issued by Nepali courts must be respected, and the security forces must be held accountable for contempt of court when they provide false information to the courts.

Human Rights Watch urges key supporters of the Nepali government and armed forces, including the governments of the United States, United Kingdom, and India, to make ending the practice of “disappearances” a condition of continuing military support. We urge the U.N. Commission on Human Rights to adopt a resolution at its 2005 session condemning abuses by both sides of the conflict and specifically addressing the responsibility of the Nepali security forces for widespread “disappearances.”

In order for Nepal to effectively address the crisis of “disappearances,” the international community will also need to increase its support for institutions responsible for human rights monitoring and accountability, such as the NHRC, the courts, and human rights and other relevant NGOs. All international actors should insist upon unfettered access for the NHRC to places of detention, both official and unofficial, so that it can conduct independent and impartial investigations into allegations of “disappearances” and related human rights abuses.

Detailed recommendations to the Nepali government and to the international community are found in the closing chapter of this report.